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An / Examination / into the / leading principles / of 
the / Federal Constitution / proposed by the late / Con- 
vention / held at Philadelphia. / With / Answers to the 
principal objections / that have been raised against the 
system. / By a Citizen of America. / — Ut patria sua 
felicitate caeteris praestaret, efficit. / Xenoph. Lacedaem. 
Resp. / Philadelphia : / Printed and sold by Prichard & 
Hall, in Market Street, / the second door above Laetitia 
Court. / M.DCC.LXXXVII. 

8vo., pp. 55. 



Written by Noah Webster. This is reprinted from his own 
copy of the pamphlet, and the foot notes in brakets show his 
corrections and additions. 

"This is a hasty production, written at the request of 
Mr. Fitzsimmons, of Philadelphia, a member of the Conven- 
tion." — Indorsement by Noah Webster. 

P. L. F. 



Avery Architectural and Fine Arts Library 
Gift of Seymour B. Durst Old York Library 



TO 

HIS EXCELLENCY 

BENJAMIN FRANKLIN, Escl. 

PRESIDENT OF THE COMMONWEALTH OF 
PENNSYLVANIA, 

AND 

MEMBER OF THE LATE CONVENTION, 
HELD AT PHILADELPHIA FOR THE PURPOSE OF 
DEVISING A CONSTITUTION FOR THE 
GOVERNMENT OF THE UNITED STATES, 

THE FOLLOWING REMARKS UPON THE SYSTEM 
RECOMMENDED BY THAT CONVENTION, 

ARE MOST HUMBLY INSCRIBED 
BY 

HIS EXCELLENCY'S 

MOST OBEDIENT 

HUMBLE SERVANT, 

THE AUTHOR. 

Philadelphia, ) 
October jo, 1787. ) 



. .WHZ 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/examinationintolOOwebs 



/^\F all the memorable aeras that have marked the progress 
of men from the savage state to the refinements of lux- 
ury, that which has combined them into society, under a wise 
system of government, and given form to a nation, has ever 
been recorded and celebrated as the most important. Legis- 
lators have ever been deemed the greatest benefactors of man- 
kind — respected when living, and often deified after their 
death. Hence the fame of Fohi and Confucius — of Moses, 
Solon and Lycurgus — of Romulus and Numa — of Alfred, 
Peter the Great, and Mango Capac ; whose names will be cel- 
ebrated through all ages, for framing and improving constitu- 
tions of government, which introduced order into society and 
secured the benefits of law to millions of the human race. 

This western world now beholds an aera important beyond 
conception, and which posterity will number with the age of 
Czar of Muscovy, and with the promulgation of the Jewish 
laws at Mount Sinai. The names of those men who have 
digested a system of constitutions for the American empire, 
will be enrolled with those of Zamolxis and Odin, and cele- 
brated by posterity with the honors which less enlightened 
nations have paid to the fabled demi-gods of antiquity. 

[6] But the origin of the American REPUBLIC is distin- 
guished by peculiar circumstances. Other nations have been 
driven together by fear and necessity — the governments have 
generally been the result of a single man's observations; or 
the offspring of particular interests. In the formation of our 
constitution, the wisdom of all ages is collected — the legisla- 
tors of antiquity are consulted — as well as the opinions and 
interests of the millions who are concerned. In short, it is an 
empire of reason. 

In the formation of such a government, it is not only the 
right, but the indispensable duty of every citizen to examine 
the principles of it, to compare them with the principles of 
other governments, with a constant eye to our particular situ- 



6 



EXAMINATION BY NOAH WEBSTER, 



ation and circumstances, and thus endeavor to foresee the 
future operations of our own system, and its effects upon 
human happiness. 

Convinced of this truth, I have no apology to offer for the 
following remarks, but an earnest desire to be useful to my 
country. 

In attending to the proposed Federal Constitution, the 
first thing that presents itself to our consideration, is the 
division of the legislative into two branches. This article has 
so many advocates in America, that it needs not any vindi- 
cation.* — But it has its opposers, among whom are some 
respectable characters, especially in Pennsylvania ; for which 
reason, I will state [7] some of the arguments and facts which 
incline me to favor the proposed division. 

On the first view of men in society, we should suppose 
that no man would be bound by a law to which he had not 
given his consent. Such would be our first idea of political 
obligation. But experience, from time immemorial, has proved 
it to be impossible to unite the opinions of all the members of 
a community, in every case ; and hence the doctrine, that the 
opinions of a majority must give law to the whole State : a 
doctrine as universally received, as any intuitive truth. 

Another idea that naturally presents itself to our minds, 
on a slight consideration of the subject, is, that in a perfect 
government, all the members of a society should be present, 
and each give his suffrage in acts of legislation, by which he 
is to be bound. This is impracticable in large states ; and 
even were it not, it is very questionable whether it would be 
the best mode of legislation. It was however practised in the 
free states of antiquity ; and was the cause of innumerable 
evils. To avoid these evils, the moderns have invented the 
doctrine of representation, which seems to be the perfection of 
human government. 

Another idea, which is very natural, is, that to complete 
the mode of legislation, all the representatives should be col- 
lected into one body, for the purpose of debating questions 
and enacting laws. Speculation would suggest the idea ; 

* A division of the legislature has been adopted in the new constitution of 
every state except Pennsylvania and Georgia. 



EXAMINATION BY NOAH WEBSTER. 



7 



[8] and the desire of improving upon the systems of govern- 
ment in the old world, would operate powerfully in its favor. 

But men are ever running into extremes. The passions, 
after a violent constraint, are apt to run into licentiousness ; 
and even the reason of men, who have experienced evils from 
the defects of a government, will sometimes coolly condemn 
the whole system. 

Every person, moderately acquainted with human nature, 
knows that public bodies, as well as individuals, are liable to 
the influence of sudden and violent passions, under the oper- 
ation of which, the voice of reason is silenced. Instances of 
such influence are not so frequent, as in individuals ; but its 
effects are extensive in proportion to the numbers that com- 
pose the public body. This fact suggests the expediency of 
dividing the powers of legislation between the two bodies of 
men, whose debates shall be separate and not dependent on 
each other; that, if at any time, one part should appear to be 
under any undue influence, either from passion, obstinacy, 
jealousy of particular men, attachment to a popular speaker, 
or other extraordinary causes, there might be a power in the 
legislature sufficient to check every pernicious measure. Even 
in a small republic, composed of men, equal in property and 
abilities, and all meeting for the purpose of making laws, like 
the old Romans in the field of Mars, a division of the body 
into two independent branches, would be a necessary step to 
prevent the disorders, which arise from [9] the pride, irritability 
and stubborness of mankind. This will ever be the case, 
while men possess passions, easily inflamed, which may bias 
their reason and lead them to erroneous conclusions. 

Another consideration has weight : A single body of men 
may be led astray by one person of abilities and address, 
who, on the first starting a proposition, may throw a plausible 
appearance on one side of the question, and give a lead to the 
whole debate. To prevent any ill consequence from such a 
circumstance, a separate discussion, before a different body of 
men, and taken up on new grounds, is a very eligible expedient. 

Besides, the design of a senate is not merely to check the 
legislative assembly, but to collect wisdom and experience. 



3 



EXAMINATION BY NOAH WEBSTER. 



In most of our constitutions, and particularly in the proposed 
federal system, greater age and longer residence are required 
to qualify for the senate, than for the house of representa- 
tives. This is a wise provision. The house of representatives 
may be composed of new and unexperienced members — 
strangers to the forms of proceeding, and the science of legis- 
lation. But either positive institutions, or customs, which 
may supply their place, fill the senate with men venerable for 
age and respectability, experienced in the ways of men, and 
in the art of governing, and who are not liable to the bias of 
passions that govern the young. If the senate of Rhode 
Island is an exception to this observation, it is a proof that 
the mass of the people are corrupted, and that the senate 
should be elected [10] less frequently than the other house : 
Had the old senate in Rhode Island held their seats for three 
years ; had they not been chosen, amidst a popular rage for 
paper money, the honor of that state would probably have 
been saved. The old senate would have stopped the measure 
for a year or two, till the people could have had time to 
deliberate upon its consequences. I consider it as a capital 
excellence of the proposed constitution, that the senate can 
be wholly renewed but once in six years. 

Experience is the best instructor — it is better than a thou- 
sand theories. The history of every government on earth 
affords proof of the utility of different branches in a legisla- 
ture. But I appeal only to our own experience in America. 
To what cause can we ascribe the absurd measures of Con- 
gress, in times past, and the speedy recision of whole meas- 
ures, but to the want of some check? I feel the most 
profound deference for that honorable body, and perfect 
respect for their opinions ; but some of their steps betray a 
great want of consideration — a defect, which perhaps nothing 
can remedy, but a division of their deliberations. I will in- 
stance only their resolution to build a Federal Town. When 
we were involved in a debt, of which we could hardly pay the 
interest, and when Congress could not command a shilling, 
the very proposition was extremely absurd. Congress them- 
selves became ashamed of the resolution, and rescinded it 



EXAMINATION BY NOAH WEBSTER. 



9 



with as much silence as possible. Many other acts of that 
body are equally reprehensible — but respect forbids me to 
mention them. 

[n] Several states, since the war, have experienced the 
necessity of a division of the legislature. Maryland was saved 
from a most pernicious measure, by her senate. A rage for 
paper money, bordering on madness, prevailed in their house 
of delegates — an emission of 500,000 was proposed ; a sum 
equal to the circulating medium of the State. Had the sum 
been emitted, every shilling of specie would have been driven 
from circulation, and most of it from the state. Such a loss 
would not have been repaired in seven years — not to mention 
the whole catalogue of frauds which would have followed the 
measure. The senate, like honest, judicious men, and the 
protectors of the interests of the state, firmly resisted the 
rage, and gave the people time to cool and to think. Their 
resistance was effectual — the people acquiesced, and the honor 
and interest of the state were secured. 

The house of representatives in Connecticut, soon after the 
war, had taken offence at a certain act of Congress. The 
upper house, who understood the necessity and expediency of 
the measure, better than the people, refused to concur in a 
remonstrance to Congress. Several other circumstances gave 
umbrage to the lower house ; and to weaken or destroy the 
influence of the senate, the representatives, among other vio- 
lent proceedings, resolved, not merely to remove the seat of 
government, but to make every county town in the state the 
seat of government, by rotation. This foolish resolution 
would have disgraced school-boys — the senate saved the 
honor of the state, by rejecting it with disdain — [12] and within 
two months, every representative was ashamed of the conduct 
of the house. All public bodies have these fits of passion, 
when their conduct seems to be perfectly boyish ; and in these 
paroxisms, a check is highly necessary. 

Pennsylvania exhibits many instances of this hasty con- 
duct. At one session of the legislature, an armed force is 
ordered, by a precipitate resolution, to expel the settlers at 
Wioming from their possessions — at a succeeding session, the 



IO 



EXAMINATION BY NOAH WEBSTER. 



same people are confirmed in their possessions. At one ses- 
sion, a charter is wrested from a corporation — at another, 
restored. The whole state is split into parties — everything is 
decided by party — any proposition from one side of the house, 
is sure to be damned by the other — and when one party per- 
ceives the other has the advantage, they play truant — and an 
officer or a mob hunt the absconding members in all the 
streets and alleys in town. Such farces have been repeated 
in Philadelphia — and there alone. Had the legislature been 
framed with some check upon rash proceedings, the honor of 
the state would have been saved — the party spirit would have 
died with the measures proposed in the legislature. But now, 
any measure may be carried by party in the house ; it then 
becomes a law, and sows the seeds of dissension throughout 
the state.* 

[13] A thousand examples similar to the foregoing may 
be produced, both in ancient and modern history. Many 
plausible things may be said in favor of pure democracy — 
many in favor of uniting the representatives of the people in 
one single house — but uniform experience proves both to be 
inconsistent with the peace of society, and the rights of free- 
men. 

The state of Georgia has already discovered such incon- 
veniences in its constitution, that a proposition has been made 
for altering it ; and there is a prospect that a revisal will take 
place. 

People who have heard and read of the European govern- 
ments, founded on the different ranks of monarch, nobility and 
people, seem to view the senate in America, where there is no 
difference of ranks and titles, as a useless branch — or as a ser- 
vile imitation of foreign constitutions of governmeut, without 
the same reasons. This is a capital mistake. Our senates, it 

* I cannot help remarking the singular jealousy of the constitution of 
Pennsylvania, which requires that a bill shall be published for the considera- 
tion of the people, before it is enacted into a law, except in extraordinary 
cases. This annihilates, the legislature, and reduces it to an advisory body. 
It almost wholly supersedes the uses of representation, the most excellent im- 
provement in modern governments. Besides the absurdity of constituting a 
legislature, without supreme power, such a system will keep the state perpetu- 



EXAMINATION BY NOAH WEBSTER. 



II 



is true, are not composed of a different order of men ; but the 
same reasons, the same necessity for distinct branches of the 
legislature exists in all governments. But in most of our 
American constitutions, we have all the advantages of checks 
and balance, without the danger which may arise [14] from a 
superior and independent order of men. 

It is worth our while to institute a brief comparison be- 
tween our American forms of government, and the two best 
constitutions that ever existed in Europe, the Roman and the 
British. 

In England, the king or supreme executive officer, is 
hereditary. In America, the president of the United States, 
is elective. That this is an advantage will hardly be dis- 
puted.- 

In ancient Rome, the king was elective, and so were the 
consuls, who were the executive officers in the republic. But 
they were elected by the body of the people, in their public 
assemblies; and this circumstance paved the way for such ex- 
cessive bribery and corruption as are wholly unknown in 
modern times. The president of the United States is also 
elective ; but by a few men chosen by the several legisla- 
tures under their inspection separated at a vast dis- 
tance and holding no office under the United States. 

Such a mode of election almost precludes the possibility of 
corruption. Besides, no state however large, has the power 
of chusing a president in that state ; for each elector must 
choose at least one man, who is not an inhabitant of that State 
to which he belongs. 

The crown of England is hereditary — the consuls of Rome 
were chosen annually — both these extremes are guarded 
against in our proposed constitution. The president is not 

ally embroiled. It carries the spirit of discussion into all quarters, without 
the means of reconciling the opinions of men, who are not assembled to hear 
each others' arguments. They debate with themselves— form their own opin- 
ions, without the reasons which influence others, and without the means of 
information. Thus the warmth of different opinions, which, in other states, 
dies in the legislature, is diffused through the state of Pennsylvania, and be- 
comes personal and permanent. The seeds of dissension are sown in the con- 
stitution, and no state, except Rhode Island, is so distracted by factions. 



12 EXAMINATION BY NOAH WEBSTER. 

dis- [15] missed from his office, as soon as he is acquainted 
with business — he continues four years, and is re-eligible, if 
the people approve his conduct. Nor can he canvass for his 
office, by reason of the distance of the electors ; and the pride 
and jealousy of the states will prevent his continuing too long 
in office. 

The age requisite to qualify for this office is thirty-five 
years.* The age requisite for admittance to the Roman con- 
sulship was forty-three years. For this difference, good rea- 
sons may be assigned — the improvements in science, and 
particularly in government, render it practicable for a man to 
qualify himself for an important office, much earlier in life? 
than he could among the Romans ; especially in the early 
part of their commonwealth, when the office was instituted. 
Besides it is very questionable whether any inconvenience 
would have attended admission to the consulship at an earlier 
age. [f] 

The powers vested in the president resemble the powers 
of the supreme magistrates in Rome. They are not so exten- 
sive as those of the British king; but in one instance, the 
president, with concurrence of the senate, has powers exceed- 
ing those of the Roman consuls ; I mean in the appointment 
of judges and other subordinate executive officers. The prae- 
tors or judges in Rome were chosen annually by the people. 
This was a defect in the Roman government. [16] One half 
the evils in a state arise from a lax execution of the laws ; and 
it is impossible that an executive officer can act with vigor 
and impartiality, when his office depends on the popular voice. 
An annual popular election of executive officers is the sure 
source of a negligent, partial and corrupt administration. The 
independence of the judges in England has produced a course 
of the most just, impartial and energetic judicial decisions, for 
many centuries, that can be exhibited in any nation on earth. 
In this point therefore I conceive the plan proposed in Amer- 
ica to be an improvement on the Roman constitution. In all 

* In the decline of the republic, bribery or military force obtained this 
office for persons who had not attained this age — Augustus was chosen at the 
age of twenty; or rather obtained it with his sword. 

[f "Query."] 



EXAMINATION BY NOAH WEBSTER. 



13 



free governments, that is, in all countries, where laws govern , 
and not men, the supreme magistrate should have it in his 
power to execute any law, however unpopular, without haz- 
arding his person or office. The laws are the sole guardians 
of right, and when the magistrate dares not act, every person 
is insecure. 

Let us now attend to the constitution and the powers of 
the senate. 

The house of lords in England is wholly independent on [f ] 
the people. The lords spiritual hold their seats by office; and 
the people at large have no voice in disposing of the ecclesias- 
tical dignities. The temporal lords hold their seats by heredi- 
tary right or by grant from the king: And it is a branch of 
the king's prerogative to make what peers he pleases. 

[17] The senate in Rome was elective ; but a senator held 
his seat for life.* 

[fof] 

* I say the senate was elective — but this must be understood with some 
exceptions; or rather qualifications. The constitution of the Roman senate has 
been a subject of enquiry, with the first men in modern ages. Lord Chester- 
field requested the opinion of the learned Vertot, upon the manner of chusing 
senators in Rome; and it was a subject of discussion between Lord Harvey and 
Dr. Middleton. The most probable account of the manner of forming the se- 
nate, and filling up vacancies, which I have collected from the best writers on 
this subject, is here abridged for the consideration of the reader. 

Romulus chose one hundred persons, from the principal families in Rome, 
to form a council or senate; and reserved to himself the right of nominating 
their successors ; that is of filling vacancies. "Mais comme Romulus avoit lui 
" m£me choisi les premiers senateurs il se reserva le droit de nommer a son 
" gre, leurs successeurs." — Mably, sur les Romains. Other well informed his- 
torians intimate that Romulus retained the right of nominating the president 
only. After the union of the Sabines with the Romans, Romulus added an- 
other hundred members to the senate, but by consent of the people. Tarquin, 
the ancient, added another hundred; but historians are silent as to the manner. 

On the destruction of Alba by Hostilius, some of the principal Alban fam- 
ilies were added to the senate, by consent of the senate and people. 

After the demolition of the monarchy, Appius Claudius was admitted into 
the senate by order of the people. 

Cicero testifies that, from the extinction of the monarchy, all the members 
of the senate were admitted by command of the people. 

It is observable that the first creation of the senators was the act ot the 
monarch; and the first patrician families claimed the sole right of admission 



14 EXAMINATION BY NOAH WEBSTER. 

[18] The proposed senate in America is constituted on prin- 
ples more favorable to liberty : The members are elective, and 
by the separate legislatures : They hold their seats for six 
years — they are thus rendered sufficiently dependent on their 
constituents; and yet are not dismissed from their office as 
soon as they become acquainted with the forms of proceeding. 

It may be objected by the larger states, that the represen- 
tation is not equal; the smallest states having the privilege of 
sending the same number of senators as the largest. To obvi- 
ate this objection, I would suggest but two or three ideas. 

I. If each state had a representation and a right in deciding 
questions, proportional to its property, three states would 
almost command the whole. Such a constitution would grad- 
ually annihilate the small states ; and finally melt down the 
whole United States into one undivided sovereignty. The 
free states of Spain and the heptarchy in England, afford strik_ 
ing examples of this. 

[19] Should it be said that such an event is desirable, I answer; 
the states are all entitled to their respective sovereignties, 
and while they claim independence in international jurisdic- 
tion, the federal constitution ought to guarantee their sover- 
eignty. 

into the senate. " Les families qui descendoient des deux cent senateurs que 
" Romulus avoit crees, — se crurent seules en droit d'entrer dans le senat." — 
Mably 

This right however was not granted in its utmost extent ; for many of the 
senators in the Roman commonwealth, were taken from plebian families. For 
sixty years before the institution of the censorship, which was A. U. C. 31 J, we 
are not informed how vacancies in the senate were supplied. The most proba- 
ble method was this ; to enrol, in the list of senators, the different magistrates; 
viz., the consuls, praetors, the two quaetors of patrician families, the five tri- 
bunes (afterwards ten) and the two aediles of plebian families: The office of 
quaestor gave an immediate admission into the senate. The tribunes were ad- 
mitted two years after their creation. This enrollment seems to have been a 
matter of course; and likewise their confirmation by the people in their comitia 
or assemblies. 

On extraordinary occasions, when the vacancies of the senate were numer- 
ous, the consuls used to nominate some of the most respectable of the eques- 
trian order, to be chosen by the people. 

On the institution of the censorship, the censors were invested with full 
powers to inspect the manners of the citizens, — enrol them in their proper 



EXAMINATION BY NOAH WEBSTER. 



Another consideration has weight — There is, in all nations, 
a tendency toward an accumulation of power in some point. 
It is the business of the legislator to establish some barriers 
to check the tendency. In small societies, a man worth 
100,000 has but one vote, when his neighbors, who are 
worth but fifty pounds, have each one vote likewise. To make 
property the sole basis of authority, would expose many of the 
best citizens to violence and oppression. To make the num- 
ber of inhabitants [*] in a state, the rule of apportioning 
power, is more epuitable ; and were the United States one 
indivisible interest, would be a perfect rule for representation. 
But the detached situation of the states has created some sep- 
arate interests — some local institutions, which they will not 
resign nor throw into the hands of other states. For these 
peculiar interests, the states have an equal attachment — for the 
preservation and enjoyment of these, an equal sovereignty is 
necessary ; and the sovereignty of each state would not be 
secure, had each state, in both branches of the legislature an 
authority in passing laws, proportioned to its inhabitants. 

3. But the senate should be considered as representing the 

ranks according to their property, — make out lists of the senators and leave 
out the names of such as had rendered themselves unworthy of their dignity 
by any scandalous vices. This power they several times exercised ; but the 
disgraced senators had an appeal to the people. 

After the senate had lost half its members in the war with Hannibal, the 
dictator, M. Fabius Buteo, filled up the number with the magistrates, with those 
who had been honored with a civic crown, or others who were respectable for 
age and character. One hundred and seventy new members were added at 
once, with the approbation of the people. The vacancies occasioned by Sylla's 
proscriptions amounted to three hundred, which were supplied by persons nom- 
inated by Sylla and chosen by the people. 

Before the time of the Gracchi, the number of senators did not exceed three 
hundred. But in Sylla's time, so far as we can collect from direct testimonies, 
it amounted to about five hundred. The age necessary to qualify for aseat in 
the senate is not exactly ascertained ; but several circumstances prove it to 
have been about thirty years. 

See Vertot, Mably, and Middleton on this subject. 

In the last ages of Roman splendor, the property requisite to qualify a 
person for a senator, was settled by Augustus at eight hundred sestertia — more 
than six thousand pounds sterling. 

[* "Between states, and excluding negroes," added in author's copy. — P. L. F.} 



i6 



EXAMINATION BY NOAH WEBSTER. 



confederacy in a body. It is a [20] false principle in the vulgar 
idea of representation, that a man delegated by a particular 
district in a state, is the representative of that district only ; 
whereas in truth a member of the legislature from any town 
or county, is the representative of the whole state. In pass- 
ing laws, he is to view the whole collective interest of the 
state, and act from that view ; not from a partial regard to the 
interest of the town or county where he is chosen. 

The same principle extends to the Congress of the United 
States. A delegate is bound to represent the true local inter, 
est of his constituents — to state in its true light to the whole 
body — but when each provincial interest is thus stated, every 
member should act for the aggregate interest of the whole 
confederacy. The design of representation is to bring the 
collective interest into view — a delegate is not the legislator 
of a single state — he is as much the legislator of the whole 
confederacy as of the particular state where he is chosen ; and 
if he gives his vote for a law which he believes to be beneficial 
to his own state only, and pernicious to the rest, he betrays 
his trust and violates his oath. It is indeed difficult for a man 
to divest himself of local attachments and act from an impar- 
tial regard to the general good ; but he who cannot for the 
most part do this, is not a good legislator. 

These considerations suggest the propriety of continuing 
the senators in office, for a longer period, than the representa- 
tives. They gradually lose their partiality, generalize their 
views, [21] and consider themselves as acting for the whole 
confederacy. Hence in the senate we may expect union and 
firmness — here we may find the general good the object of leg- 
islation, and a check upon the more partial and interested acts 
of the other branch. 

These considerations obviate the complaint, that the repre- 
sentation in the senate is not equal ; for the senators represent 
the whole confederacy; and all that is wanted of the members 
is information of the true situation and interest of each state. 
As they act under the direction of the several legislatures, 
two men may as fully and completely represent a state, as 
twenty ; and when the true interest of each state is known, if 



EXAMINATION BY NOAH WEBSTER. 



17 



the senators perform the part of good legislators, and act im- 
partially for the whole collective body of the United States, 
it is totally immaterial where they are chosen.* 

[22] The house of representatives is the more immediate 
voice of the separate states — here the states are represented 
in proportion to their number of inhabitants — here the separ- 
ate interests will operate with their full force, and the violence 
of parties and the jealousies produced by interfering interests, 
can be restrained and quieted only by a body of men, less 
local and dependent. 

It may be objected that no separate interests should exist 
in a state ; and a division of the legislature has a tendency to 
create them. But this objection is founded on mere jealousy, 
or a very imperfect comparison of the Roman and British gov- 
ernments, with the proposed federal constitution. 

* It is a capital defect of most of the state-constitutions, that the senators, 
like the representatives, are chosen in particular districts, They are thus in- 
spired with local views, and however wrong it may be to entertain them, yet 
such is the constitution of human nature, that men are almost involuntarily 
attached to the interest of the district which has reposed confidence in their 
abilities and integrity. Some partiality therefore for constituents is always 
expectable. To destroy it as much as possible, a political constitution should 
remove the grounds of local attachment. Connecticut and Maryland have 
wisely destroyed this attachment in their senates, by ordaining that the members 
shall be chosen in the state at large. The senators hold their seats by the suf- 
frages of the state, not of a district; hence they have no particular number of 
men to fear or to oblige. — They represent the state; hence that union and firm- 
ness which the senates of those states have manifested on the most trying occa- 
sions, and by which they have prevented the most rash and iniquitous measures. 

It may be objected, that when the election of senators is vested in the peo- 
ple, they must choose men in their own neighborhood, or else those with whom 
they are unacquainted. With respect to representatives, this objection does 
not lie ; for they are chosen in small districts ; and as to senators, there is, in 
every state, a small number of men, whose reputation for abilities, integrity 
and good conduct will lead the people to a very just choice. Old experienced 
statesmen should compose the senate ; and people are generally, in this free 
country, acquainted with their characters. Were it possible, as it is in small 
states, it would be an improvement in the doctrine of representation, to give 
every freeman the right of voting for every member of the legislature, and the 
privilege of choosing the men in any part of the state. This would totally 
exclude bribery and undue influence ; for no man can bribe a state ; and it 
would almost annihilate partial views in legislation. But in large states it may 
be impracticable. 



i8 



EXAMINATION BY NOAH WEBSTER. 



The house of peers in England is a body originally and 
totally independent on [*] the people — the senate in Rome 
was mostly composed of patrician or noble families, and after 
the first election of a senator, he was no longer dependent on 
the people — he held his seat for life. But the senate of the 
United States can have no separate interests from the body of 
the people; for they live among them — they are chosen by 
them — they must be dismissed from their place once in six 
years and may at any time be impeached for mal-practices — 
— their property is si- [23] tuated among the people, and with 
their persons, subject to the same laws. No title can be 
granted, but the temporary titles of office, bestowed by the 
voluntary election of the people ; and no pre-eminence can be 
acquired but by the same means. 

The separation of the legislature divides the power — checks 
— restrains — amends the proceedings — at the same time, it 
creates no division of interest, that can tempt either branch to 
encroach upon the other, or upon the people. In turbulent 
times, such restraint is our greatest safety — in calm times, and 
in measures obviously calculated for the general good, both 
branches must always be unanimous. 

A man must be thirty years of age before he can be admit- 
ted into the senate — which was likewise a requisite in the 
Roman government. What property was requisite for a sen- 
ator in the early ages of Rome, I cannot inform myself ; but 
Augustus fixed it at six hundred sestertia — between six and 
seven thousand pounds sterling. In the federal constitution, 
money is not made a requisite — the places of senators are 
wisely left open to all persons of suitable age and merit, and 
who have been citizens of the United States for nine years ; a 
term in which foreigners may acquire the feelings and acquaint 
themselves with the interests, of the native Americans. 

The house of representatives is formed on very equitable 
principles ; and is calculated to guard the privileges of the 
people. The English [24] house of commons is chosen by a 
small part of the people of England, and continues for seven 
years. The Romans never discovered the secret of represen- 
tation — the whole body of citizens assembled for the purposes 

[* of] 



EXAMINATION BY NOAH WEBSTER. 



19 



of legislation — a circumstance that exposed their government 
to frequent convulsions, and to capricious measures. The 
federal house of representatives is chosen by the people qual- 
ified to vote for state representatives,* and continues two 
years. 

[25] Some may object to their continuance in power two 
years. But I cannot see any danger arising from this quarter. 
On the contrary, it creates less trouble for the representatives, 
who by such choice are taken from their professions and 
obliged to attend Congress, some of them at the distance of 
at least seven hundred miles. While men are chosen by the 
people, and responsible to them, there is but little danger 
from ambition or corruption. 

If it should be said that Congress may in time become tri- 
ennial, and even septennial, like the English parliaments, I 
answer, this is not in their power. The English parliament 
had power to prolong the period of their existence — but Con- 
gress will be restrained by the different legislatures, without 

* It is said by some, that no property should be required as a qualification 
for an elector. I shall not enter into a discussion of the subject; but remark 
that in most free governments, some property has been thought requisite, to 
prevent corruption and secure government from the influence of an unprinci. 
pled multitude. 

In ancient Rome none but the free citizens had the right of a suffrage in the 
comitia or legislative assemblies. But in Sylla's time the Italian cities demanded 
the rights of the Roman citizens; alledging that they furnished two-thirds of the 
armies, in all their wars, and yet were despised as foreigners. Veil Paterc. 
lib. 2. cap. 15. This produced the Marsic or social war, which lasted two 
years, and caried off 300,000 men. Ibm. It was conducted and concluded by 
Pompey, father of Pompey the Great, with his lieutenants Sylla and Marius. 
But most of the cities eventually obtained the freedom of Rome; and were of 
course entitled to the rights of suffrage in the comitia. "Paulatim deinde recip- 
" iendo in civitatem, qui arma aut non ceperant aut deposuerant maturius, 
"vires refectae sunt." Veil. Paterc. 2. 16. 

But Rome had cause to deplore this event, for however reasonable it might 
appear to admit the allies to a participation of the rights of citizens, yet the 
concession destroyed all freedom of election. It enabled an ambitious dema- 
gogue to engage and bring into the assemblies, whole towns of people, slaves 
and foreigners; — and everything was decided by faction and violence. This 
Montesquieu numbers among the causes of the decline of the Roman greatness. 
De la grandeur des Romains, c. 9. 

Representation would have, in some measure, prevented the consequences; 



20 



EXAMINATION BY NOAH WEBSTER. 



whose constitutional concurrence, no alteration can be made 
in the proposed system. 

The fourth section, article I, of the new constitution 
declares that "The times, places, and manner of holding elec- 
" tions for senators and representatives, shall be prescribed in 
" each state by the legislature thereof ; but the Congress may 
" at any time by law make or alter such regulations, except as to 

" the places of chusing senators." Here let us pause What 

did the convention mean by giving Congress power to make 
regulations, prescribed by the legislatures? Is this expression 
accurate or intelligible? But the word alter is very intelligi- 
ble, and the clause puts the election of representatives wholly, 
and [26] the senators almost wholly, in the power of Congress. 

The views of the convention I believe to be perfectly 
upright — They might mean to place the election of representa- 
tives and senators beyond the reach of faction — They doubtless 
had good reasons, in their minds, for the clause — But I see no 
occasion for any power in Congress to interfere with the 
choice of their own body — They will have power to suppress 
insurrections, as they ought to have ; but the clause in Italics 
gives needless and dangerous powers — I hope the states will 
reject it with decency, and adopt the whole system, without 
altering another syllable. [*] 

The method of passing laws in Congress is much preferable 
to that of ancient Rome or modern Britain. Not to mention 
other defects in Rome, it lay in the power of a single tribune 

but the admission of every man to a suffrage will ever open the door to corrup- 
tion. In such a state as Connecticut, where there is no conflux of foreigners, no 
introduction of seamen, servants, &c, and scarcely an hundred persons in the 
state who are not natives, and very few whose education and connexions do 
not attach them to the government ; at the same time few men have property 
to furnish the means of corruption, very little danger could spring from admit- 
ting every man of age and discretion to the privilege of voting for rulers. But 
in the large towns of America there is more danger. A master of a vessel may 
put votes in the hands of his crew, for the purpose of carrying an election for a 
party. Such things have actually taken place in America. Besides, the mid- 
dle states are receiving emigrations of poor people, who are not at once judges 
of the characters of men, and who cannot be safely trusted with the choice of 
legislators. 

[* These two paragraphs struck out in author's copy. — p. l. f.] 



EXAMINATION BY NOAH WEBSTER. 



21 



to obstruct the passing of a law. As the tribunes were popu- 
lar magistrates, the right was often exercised in favor of lib- 
erty ; but it was also abused, and the best regulations were 
prevented, to gratify the spleen, the ambition, or the resent- 
ment of an individual. 

The king of Great-Britain has the same power, but seldom 
exercises it. It is however a dangerous power — it is absurd 
and hazardous to lodge in one man the right of controlling the 
will of a state. 

Every bill that passes a majority of both houses of Con- 
gress, must be sent to the president for [27] his approbation ; 
but it must be returned in ten days, whether approved by him 
or not ; and the concurrence of two thirds of both houses passes 
the bill into a law, notwithstanding any objections of the presi- 
dent. The constitution therefore gives the supreme executive 
a check but no negative, upon the sense of Congress. 

The powers lodged in Congress are extensive ; but it is 
presumed that they are not too extensive. The first object of 
the constitution is to unite the states into one compact society, 
for the purpose of government. If such union must exist, or 
the states be exposed to foreign invasions, internal discord, 
reciprocal encroachments upon each others property — to 
weakness and infamy, which no person will dispute ; what 
powers must be collected and lodged in the supreme head or 
legislature of these states. The answer is easy : This legisla- 
ture must have exclusive jurisdiction in all matters in which 
the states have a mutual interest. There are some regulations 
in which all the states are equally concerned — there are others, 
which in their operation, are limited to one state. The first 
belongs to Congress — the last to the respective legislatures. No 
one state has a right to supreme control, in any affair in which 
the other states have an interest, nor should Congress interfere 
in any affair which respects one state only. This is the gen- 
eral line of division, which the convention have endeavored to 
draw, between the powers of Congress and the rights of the 
individual states. The only question therefore is, whether 
the new constitution delegates to Congress any powers which 
[28] do not respect the general interest and welfare of the 



22 



RXAMINATION BY NOAH WEBSTER. 



United States. If these powers intrench upon the present 
sovereignty of any state, without having for an object the col- 
lective interest of the whole, the powers are too extensive. But 
if they do not extend to all concerns, in which the states have 
a mutual interest, they are too limited. If in any instance 5 
the powers necessary for protecting the general interest, inter- 
fere with the constitutional rights of an individual state, such 
state has assumed powers that are inconsistent with the safety 
of the United States, and which ought instantly to be resigned. 
Considering the states as individuals, on equal terms, entering 
into a social compact, no state has a right to any power which 
may prejudice its neighbors. If therefore the federal constitu- 
tion has collected into the federal legislature no more power 
than is necessary for the common defence and interest, it should 
be recognized by the states, however particular clauses may 
supersede the exercise of certain powers by the individual 
states. 

This question is of vast magnitude. The states have very 
high ideas of their separate sovereignty; altho' it is certain, 
that while each exists in its full latitude, we can have no Fed- 
eral sovereignty. However flattered each state may be by its 
independent sovereignty, we can have no union, no respecta- 
bility, no national character, and what is more, no national 
justice, till the states resign to one supreme head the exclusive 
power of legislating, judging and executing, in all matters of a 
general nature. Every thing of [29] a private or provincial 
nature, must still rest on the ground of the respective state- 
constitutions. 

After examining the limits of the proposed congressional 
powers, I confess I do not think them too extensive — I firmly 
believe that the life, liberty and property of every man, and 
the peace and independence of each state, will be more fully 
secured under such a constitution of federal government, than 
they will under a constitution with more limited powers; and 
infinitely more safe than under our boasted distinct sovereign- 
ties. It appears to me that Congress will have no more power 
than will be necessary for our union and general welfare ; and 
such power they must have or we are in a wretched state. On 



EXAMINATION BY NOAH WEBSTER. 



23 



the adoption of this constitution, I should value real estate 
twenty per cent, higher than I do at this moment. 

I will not examine into the extent of the powers proposed 
to be lodged in the supreme federal head ; the subject would 
be extensive and require more time than I could bestow upon 
it. But I will take up some objections, that have been made 
to particular points of the new constitution. 

Most of the objections I have yet heard to the constitution, 
consist in mere insinuations unsupported by reasoning or fact. 
They are thrown out to instil groundless jealousies into the 
minds of the people, and probably with a view to prevent all 
government ; for there are, in every society, some turbulent 
geniuses whose importance [30] depends solely on faction. 
To seek the insidious and detestable nature of these insinua- 
tions, it is necessary to mention, and to remark on a few par- 
ticulars. 

1. The first objection against the constitution is, that the 
legislature will be more expensive than our present confedera- 
tion. This is so far from being true, that the money we actually 
lose by our present weakness, disunion and want of government 
would support the civil government of every state in the con- 
federacy. Our public poverty does not proceed from the 
expensiveness of Congress, nor of the civil list ; but from want 
of power to command our own advantages. We pay more 
money to foreign nations, in the course of business, and merely 
for want of government, than would, under an efficient govern- 
ment, pay the annual interest of our domestic debt. Every 
man in business knows this to be truth ; and the objection can 
be designed only to delude the ignorant. 

2. Another objection to the constitution, is the division of 
the legislature into two branches. Luckily this objection has 
no advocates but in Pennsylvania ; and even here their num- 
ber is dwindling. The factions that reign in this state, the 
internal discord and passions that disturb the government and 
the peace of the inhabitants, have detected the errors of the 
constitution, and will some time or other produce a reforma- 
tion. The division of the legislature has been the subject of 
discussion in the beginning of this essay ; and will be deemed, 



24 



EXAMINATION BY NOAH WEBSTER. 



by nineteen-twentieths of [31] the Americans, one of the prin- 
cipal excellencies of the constitution. 

3. A third insinuation, is that the proposed federal gov- 
ernment will annihilate the several legislatures. This is ex- 
tremely disingenuous. Every person, capable of reading, 
must discover, that the convention have labored to draw the 
line between the federal and provincial powers — to define the 
powers of Congress, and limit them to those general concerns 
which must come under federal jurisdiction, and which cannot 
be managed in the separate legislatures — that in all internal 
regulations, whether of civil or criminal nature, the states 
retain their sovereignty, and have it guaranteed to them by 
this very constitution. Such a groundless insinuation, or 
rather mere surmise, must proceed from dark designs or 
extreme ignorance, and deserves the severest reprobation. 

4. It is alledged that the liberty of the press is not guar- 
anteed by the new constitution. But this objection is wholly 
unfounded. The liberty of the press does not come within 
the jurisdiction of federal government. It is firmly established 
in all the states either by law, or positive declarations in bills 
of right ; and not being mentioned in the federal constitution, 
is not — and cannot be abridged by Congress. It stands on the 
basis of the respective state-constitutions. Should any state 
resign to Congress the exclusive jurisdiction of a certain dis- 
trict, which should include any town where presses are already 
established, it is in the power of the state to reserve [32] the 
liberty of the press, or any other fundamental privilege, and 
make it an immutable condition of the grant, that such rights 
shall never be violated. All objections therefore on this score 
are " baseless visions." 

5. It is insinuated that the constitution gives Congress the 
power of levying internal taxes at pleasure. This insinuation 
seems founded on the eighth section of the first article, which 
declares, that " Congress shall have power to lay and collect 
" taxes, duties, imposts and excises, to pay the debts and pro- 
" vide for the common defence and general welfare of the 
44 United States." 

That Congress should have power to collect duties, imposts 



EXAMINATION BY NOAH WEBSTER. 



25 



and excises, in order to render them uniform throughout the 
United States will hardly be controverted. The whole objec- 
tion is to the right of levying internal taxes. 

But it will be conceded that the supreme head of the states 
must have power, competent to the purposes of our union, or 
it will be, as it now is, a useless body, a mere expense, without 
any advantage. To pay our public debt, to support foreign 
ministers and our own civil government, money must be 
raised ; and if the duties and imposts are not adequate to 
these purposes, where shall the money be obtained ? It will 
be answered, let Congress apportion the sum to be raised, and 
leave the legislatures to collect the money. Well this is all 
that is intended by the clause under consideration ; with the 
addition of a fe- [33] deral power that shall be sufficient to 
oblige a delinquent state to comply with the requisition. [*] 
Such power must exist somewhere, or the debts of the United 
States can never be paid. For want of such power, our credit 
is lost and our national faith is a bye-word. 

For want of such power, one state now complies fully with 
a requisition, another partially, and a third absolutely refuses 
or neglects to grant a shilling. Thus the honest and punctual 
are doubly loaded — and the knave triumphs in his negligence. 
In short, no honest man will dread a power that shall enforce 
an equitable system of taxation. The dis-honest are ever 
apprehensive of a power that shall oblige them to do what 
honest men are ready to do voluntarily. 

Permit me to ask those who object to this power of taxa- 
tion, how shall money be raised to discharge our honest debts 
which are universally acknowledged to be just? ^Have we 
not already experienced the inefficacy of a system without 
power? Has it not been proved to demonstration, that a vol- 
untary compliance with the demands of the union can never 
be expected ? To what expedient shall we have recourse ? 
What is the resort of all governments in cases of delinquency? 
Do not the states vest in the legislature, or even in the gov- 
ernor and council, a power to enforce laws, even with the mil- 
itia of the states ? And how rarely does there exist the neces- 
sity of exerting such a power? Why should such a power be 

[* Last two sentences struck out in author's copy. — p. l. f.] 



26 



EXAMINATION BY NOAH WEBSTER. 



more dangerous in Congress than in a legislature ? Why 
should [34] more confidence be reposed in a member of one 
legislature than of another? Why should we choose the best 
men in the state to represent us in Congress, and the moment 
they are elected arm ourselves against them as against tyrants 
and robbers ? Do we not, in this conduct, act the part of a 
man, who, as soon as he has married a woman of unsuspected 
chastity, locks her up in a dungeon? Is there any spell or 
charm, that instantly changes a delegate to Congress from an 
honest man into a knave — a tyrant? I confess freely that I 
am willing to trust Congress with any powers that I should 
dare lodge in a state-legislature. I believe life, liberty, and 
property is as safe in the hands of a federal legislature, organ- 
ized in the manner proposed by the convention, as in the 
hands of any legislature, that has ever been or ever will be 
chosen in any particular state. 

But the idea that Congress can levy taxes at pleasure is 
false, and the suggestion wholly unsupported. The preamble 
to the constitution is declaratory of the purposes of our union.' 
and the assumption of any powers not necessary to establish 
justice, insure domestic tranquility, provide for the common 
defence, promote the general welfare, and to secure the blessi?igs 
of liberty to ourselves and our posterity, will be unconstitutional, 
and endanger the existence of Congress. Besides, in the very 
clause which gives the power of levying duties and taxes, the 
purposes to which the money shall be appropriated are speci- 
fied, viz. to pay the debts and provide for the common de- [35] 
fence and general welfare of the United States* For these 
purposes money must be collected, and the power of collection 
must be lodged, sooner or later, in a federal head ; or the com- 
mon defence and general welfare must be neglected. 

The states in their separate capacity, cannot provide for 

* The clause may at first appear ambiguous. It may be uncertain whether 
we should read and understand it thus — "The Congress shall have power to 
"lay and collect taxes, 'duties, imposts and excises in order to pay the debts" &c. 
or whether the meaning is — "The Congress shall have power to lay and collect 
" taxes, duties, imposts and excises, and shall have power to pay the debts" &c. 
On considering the construction of the clause, and comparing it with the pre- 
amble, the last sense seems to be improbable and absurd. But it is not very 



EXAMINATION BY NOAH WEBSTER. 



27 



the common defence ; nay in case of a civil war, a state cannot 
secure its own existence. The only question therefore is, 
whether it is necessary to unite, and provide for our common 
defence and general welfare. For this question being once 
decided in the affirmative, leaves no room to controvert the 
propriety of constituting a power over the whole United 
States, adequate to these general purposes. 

The states, by granting such power, do not throw it out 
of their own hands — they only throw, each its proportion, into 
a common stock — they merely combine the powers of the sev- 
eral states into one point, where they must be collected, before 
they can be exerted. But the powers are still in their own 
hands ; and cannot be alienated, till they create a body inde- 
pendent of them- [36] selves, with a force at their command, 
superior to the whole yeomanry of the country. 

6. It is said there is no provision made in the new consti- 
tution against a standing army in time of peace. Why do not 
people object that no provision is made against the introduc- 
tion of a body of Turkish Janizaries; or against making the 
Alcoran the rule of faith and practice, instead of the Bible ? 
The answer to such objections is simply this — no stick provision 
is necessary. The people in this country cannot forget their 
apprehensions from a British standing army, quartered in 
America ; and they turn their fears and jealousies against them- 
selves. Why do not the people of most of the states apprehend 
danger from standing armies from their own legislatures? 
Pennsylvania and North Carolina, I believe, are the only states 
that have provided against this danger at all events. Other 
states have declared that " no standing armies shall be kept up 
without the consent of the legislature." But this leaves the 
power entirely in the hands of the legislature. Many of the 
states however have made no provision against this evil. What 

material; for no powers are vested in Congress but what are included under 
the general expressions, of providing for the common defence and general welfare 
of the United States. Any powers not promotive of these purposes, will be 
unconstitutional; — consequently any appropriations of money to any other pur- 
pose will expose the Congress to the resentment of the states, and the members 
to impeachment and loss of their seats. 



28 



EXAMINATION BY NOAH WEBSTER. 



hazards these states suffer ! Why does not a man pass a law 
in his family, that no armed soldier shall be quartered in his 
house by his consent ? The reason is very plain : no man will 
suffer his liberty to be abridged, or endangered — his disposi- 
tion and his power are uniformly opposed to any infringement 
of his rights. In the same manner, the principles and habits, 
as well as the power of the Americans are directly opposed to 
standing armies ; and there is as little [37] necessity to guard 
against them by positive constitutions, as to prohibit the 
establishment of the Mahometan religion. But the constitu- 
tion provides for our safety ; and while it gives Congress 
power to raise armies, it declares that no appropriation of 
money to their support shall be for a longer term than two 
years. 

Congress likewise are to have power to provide for organ- 
izing, arming and disciplining the militia, but have no other 
command of them, except when in actual service. Nor are 
they at liberty to call out the militia at pleasure — but only, to 
execute the laws of the union, suppress insurrections, and 
repel invasions. For these purposes, government must always 
be armed with a military force, if the occasion should require 
it ; otherwise laws are nugatory, and life and property inse- 
cure. 

7. Some persons have ventured to publish an intimation, 
that by the proposed constitution, the trial by jury is abolished 
in all civil cases. Others very modestly insinuate, that it is in 
some cases only. The fact is, that trial by jury is not affected 
in any case, by the constitution ; except in cases of impeach- 
ment, which are to be tried by the senate. None but persons 
in office in or under Congress can be impeached ; and even 
after a judgment upon an impeachment, the offender is liable 
to a prosecution, before a common jury, in a regular course of 
law. The insinuation therefore that trials by jury are to be 
abolished, is groundless, and beyond conception, wicked. It 
must be wicked, because the circu- [38] lation of a barefaced 
falsehood, respecting a privilege, dear to freemen, can proceed 
only from a depraved heart and the worst intentions. 

8. It is also intimated as a probable event, that the federal 



EXAMINATION BY NOAH WEBSTER. 



29 



courts will absorb the judiciaries of the federal states. This is 
a mere suspicion, without the least foundation. The jurisdic- 
tion of the federal states is very accurately defined and easily 
understood. It extends to the cases mentioned in the consti- 
tution, and to the execution of the laws of Congress, respect- 
ing commerce, revenue, and other general concerns. 

With respect to other civil and criminal actions, the powers 
and jurisdiction of the several judiciaries of each state, remain 
unimpaired. Nor is there anything novel in allowing appeals 
to the supreme court. Actions are mostly to be tried in the 
state where the crimes are committed — But appeals are al- 
lowed under our present confederation, and no person com- 
plains ; nay, were there no appeal, every man would have 
reason to complain, especially when a final judgement, in an 
inferior court, should affect property to a large amount. But 
why is an objection raised against an appellate jurisdiction in 
the supreme court, respecting/*?*;/ as well as law? Is it less 
safe to have the opinions of two juries than of one ? I sus- 
pect many people will think this is no defect in the constitu- 
tion. But perhaps it will destroy a material requisite of a 
good jury, viz. their vicinity to the cause of action. I have no 
doubt, that when causes were tried, in periods prior to the 
Christian aera, before [39] twelve men, seated upon twelve 
stones, arranged in a circular form, under a huge oak, there 
was great propriety in submitting causes to men in the vicinity. 
The difficulty of collecting evidence, in those rude times, ren- 
dered it necessary that juries should judge mostly from their 
own knowledge of facts or from information obtained out of 
court. But in these polished ages, when juries depend almost 
wholly on the testimony of witnesses ; and when a complica- 
tion of interests, introduced by commerce and other causes, 
renders it almost impossible to collect men, in the vicinity 
of the parties, who are wholly disinterested, it is no disadvan- 
tage to have a cause tried by a jury of strangers. Indeed the 
latter is generally the most eligible. 

But the truth is, the creation of all inferior courts is in the 
power of Congress ; and the constitution provides that Con- 
gress may make such exceptions from the right of appeals as 



30 



EXAMINATION BY NOAH WEBSTER. 



they shall judge proper. When these courts are erected, their 
jurisdictions will be ascertained, and in small actions, Congress 
will doubtless direct that a sentence in a subordinate court 
shall, to a certain amount, be definite and final. All objec- 
tions therefore to the judicial powers of the federal courts 
appear to me as trifling as any of the preceding. 

9. But, say the enemies of slavery, negroes may be imported 
for twenty-one years. This exception is addressed to the 
quakers ; and a very pitiful exception it is. 

[40] The truth is, Congress cannot prohibit the importation 
of slaves during that period ; but the laws against the import- 
ation into particular states, stand unrepealed. An immediate 
abolition of slavery would bring ruin upon the whites, and 
misery upon the blacks, in the southern states. The constitu- 
tion has therefore wisely left each state to pursue its own 
measures, with respect to this article of legislation, during the 
period of twenty-one years. 

Such are the principal objections that have yet been made 
by the enemies of the new constitution. They are mostly 
frivolous, or founded on false constructions, and a misrepre- 
sentation of the true state of facts. They are evidently 
designed to raise groundless jealousies in the minds of well 
meaning people, who have little leisure and opportunity to 
examine into the principles of government. But a little time 
and reflection will enable most people to detect such mischiev- 
ous intentions ; and the spirit and firmness which have distin- 
guished the conduct of the Americans, during the conflict for 
independence, will eventually triumph over the enemies of 
union, and bury them in disgrace or oblivion. 

But I cannot quit this subject without attempting to correct 
some of the erroneous opinions respecting/Vm/^;/* and tyranny, 
and the principles by which they are supported. Many people 
seem to entertain an idea, that liberty consists in a power to 
act without any control. This is more liberty than even the 
savages enjoy. But in civil society, political liberty consists in 
[41] acting conformably to a sense of a majority of the society. In 
a free government every man binds himself to obey the public 
voice, or the opinions of a majority; and the whole society 



EXAMINATION BY NOAH WEBSTER. 



31 



engages to protect each individual. In such a government a 
man is free and safe. But reverse the case ; suppose every 
man to act without control or fear of punishment — every man 
would be free, but no man would be sure of his freedom one 
moment. Each would have the power of taking his neighbor's 
life, liberty, or property ; and no man would command more 
than his own strength to repel the invasion. The case is the 
same with states. If the states should not unite into one 
compact society, every state may trespass upon its neighbor, 
and the injured state has no means of redress but its own 
military force. 

The present situation of our American states is very little 
better than a state of nature — Our boasted state sovereignties 
are so far from securing our liberty and property, that they, 
every moment, expose us to the loss of both. That state 
which commands the heaviest purse and longest sword, may at 
any moment, lay its weaker neighbor under tribute ; and there 
is no superior power now existing, that can regularly oppose 
the invasion or redress the injury. From such liberty, O 
*Lord, deliver us ! 

But what is tyranny? Or how can a free people be de- 
prived of their liberties ? Tyranny is the exercise of some 
power over a man, which is not warranted by law, or necessary 
for the public safety. A people can never be deprived of 
[42] their liberties, while they retain in their own hands, a 
power sufficient to any other power in the state. This posi- 
tion leads me directly to enquire, in what consists the power 
of a nation or of an order of men ? 

In some nations, legislators have derived much of their 
power from the influence of religion, or from that implicit 
belief which an ignorant and superstitious people entertain of 
the gods, and their interposition in every transaction of life. 
The Roman senate sometimes availed themselves of this 
engine to carry their decrees and maintain their authority. 
This was particularly the case, under the aristocracy which 
succeeded the abolition of the monarchy. The augurs and 

[* " O " changed to " good " in author's copy p. l. f.] 



32 



EXAMINATION BY NOAH WEBSTER. 



priests were taken wholly from patrician families.* They 
constituted a distinct order of men — had power to negative 
any law of the people, by declaring that it was passed during 
the taking of the auspices.f [T] This influence derived from 
the authority of opinion, was less perceptible, but as tyranni- 
cal as a military force. The same influence constitutes, at 
this day, a principal support of federal governments on the 
Eastern continent, and perhaps in South America. But in 
North America, by a singular concurrence of circumstances, 
the possibility of establishing this influence, as a pillar of gov- 
ernment, is totally precluded. 

[43] Another source of power in government is a military 
force. But this, to be efficient, must be superior to any force 
that exists among the people, or which they can command : 
for otherwise this force would be annihilated, on the first 
exercise of acts of oppression. Before a standing army can 
rule, the people must be disarmed ; as they are in almost 
every kingdom in Europe. The supreme power in America 
cannot enforce unjust laws by the sword ; because the whole 
body of the people are armed, and constitute a force superior 
to any band of regular troops that can be, on any pretence, 
raised in the United States. A military force, at the com- 
mand of Congress, can execute no laws, but such as the people 
perceive to be just and constitutional ; for they will possess 
the pozver, and jealousy will instantly inspire the inclination, 
to resist the execution of a law which appears to them unjust 
and oppressive. In spite of all the nominal powers, vested in 
Congress by the constitution, were the system once adopted 
in its fullest latitude, still the actual exercise of them would 
be frequently interrupted by popular jealousy. I am bold to 
say, that ten just and constitutional measures would be re- 
sisted, where one unjust or oppressive law would be enforced. 

* " Quod nemo plebeius auspicia haberet, ideoque decemviros connubium 
diremisse, ne incerta prole auspicia turbarentur." Tit. Liv. lib. 4. cap. 6. 

f Auguriis certe sacerdotisque augurum tantus honos accessit, ut nihil belli 
domique postea, nisi auspicato, gereretur : concilia populi, exercitus vocati, 
summa rerum, ubi aves non admisissent, dirimerentur. Liv. lib. 1. cap. 37. 

[T[ " The " and " of " struck out — " without " substituted in author's copy — 

P. L. F.] 



EXAMINATION BY NOAH WEBSTER. 



33 



The powers vested in Congress are little more than nominal ; 
nay real power cannot be vested in them, nor in any body, but 
in the people. The source of power is in the people of this 
country, and cannot for ages, and probably never will, be re- 
moved, [f]. 

In what then does real power consist ? The answer is 
short and plain — in property. Could [44] we want any proofs 
of this, which are not exhibited in this country, the uniform 
testimony of history will furnish us with multitudes. But I 
will go no farther for proof, than the two governments already 
mentioned, the Roman and the British. 

Rome exhibited a demonstrative proof of the inseparable 
connexion between property and dominion. The first form 
of its government was an elective monarchy — its second, an 
aristocracy; but these forms could not be permanent, because 
they were not supported by property. The kings at first and 
afterwards the patricians had nominally most of the power.; 
but the people, possessing most of the lands, never ceased to 
assert their privileges, till they established a commonwealth. 
And the kings and senate could not have held the reigns of 
government in their hands so long as they did, had they not 
artfully contrived to manage the established religion, and play 
off the superstitious credulity of the people against their own 
power. "Thus this weak constitution of government," says 
the ingenious Mr. Moyle, speaking of the aristocracy of Rome, 
" not founded on the true center of dominion, land, nor on any 
" standing foundation of authority, nor rivetted in the esteem 
" and affections of the people ; and being attacked by strong 
4i passion, general interest and the joint forces of the people, 
" mouldered away of course, and pined of a lingering con- 
" sumption, till it was totally swallowed up by the prevailing 
" faction, and the nobility were moulded into the mass of the 
"people."* The people, notwithstanding [45] the nominal 
authority of the patricians, proceeded regularly in enlarging 
their own powers. They first extorted from the senate, the 
right of electing tribunes, with a negative upon the proceed- 

[f Last two sentences struck out in author's copy. — P. L. F.] 
-* Essay on the Roman government. 



34 



EXAMINATION BY NOAH WEBSTER. 



ings of the senate.** They obtained the right of proposing 
and debating laws ; which before had been vested in the senate ; 
and finally advanced to the power of enacting laws, without 
the authority of the senate. + They regained the rights of 
election in their comitia, of which they had been deprived by 
Servius Tullius."]: They procured a permanent body of laws, 
collected from the Grecian institutions. They destroyed the 
influence of augurs, or diviners, by establishing the tributa 
comitia, in which they were not allowed to consult the gods. 
They increased their power by large accessions of conquered 
lands. They procured a repeal of the law which prohibited 
marriages between the patricians and plebians.§ The Licinian 
law limited all possessions to five hundred acres of land ; 
which, had it been fully executed, would have secured the 
commonwealth. | 

The Romans proceeded thus step by step to triumph over 
the aristocracy, and to crown their privileges, they procured 
the right of being elected to the highest offices of the state. 
By acquiring the property of the plebians, the nobility, several 
times, held most of the power of the state ; but the people, by 
reducing the interest of money, abolishing debts, or by forcing 
[46] other advantages from the patricians, generally held the 
power of governing in their own hands. 

In America, we begin our empire with more popular priv- 
ileges than the Romans ever enjoyed. We have not to 
struggle against a monarch or an aristocracy — power is lodged 
in the mass of the people. 

On reviewing the English history, we observe a progress 
similar to that in Rome — an incessant struggle for liberty from 
the date of Magna Charta, in John's reign, to the revolution. 
The struggle has been successful, by abridging the enormous 
power of the nobility. But we observe that the power of the 
people has increased in an exact proportion to their acquisi- 
tions of property. Wherever the right of primogeniture is 
established, property must accumulate and remain in families. 
Thus the landed property in England will never be sufficiently 

* Livy, 2. 33. f Livy, 3. 54. % Livy, 3. 33. §Livy, 4. 6, | Livy, 
6. 35. 42. " Ne quis plus quingenta jugera agri possideret." 



EXAMINATION BY NOAH WEBSTER. 



35 



distributed, to give the powers of government wholly into the 
hands of the people. But to assist the struggle for liberty, 
commerce has interposed, and in conjunction with manufac- 
turers, thrown a vast weight of property into the democratic 
scale. Wherever we cast our eyes, we see this truth, that 
property is the basis of power ; and this, being established as a 
cardinal point, directs us to the means of preserving our 
freedom. Make laws, irrevocable laws in every state, destroy- 
ing and barring entailments ; leave real estates to revolve from 
hand to hand, as time and accident may direct; and no family 
influence can be acquired and established for a series of 
genera- [47] tions — no man can obtain dominion over a large 
territory — the laborious and saving, who are generally the best 
citizens, w T ill possess each his share of property and power, and 
thus the balance of wealth and power will continue where it 
is, in the body of the people. 

A general and tolerably equal distribution of landed prop- 
erty is the whole basis of national freedom : The system of 
the great Montesquieu will ever be erroneous, till the words 
property or lands in fee simple are substituted for virtue, 
throughout his Spirit of Laws. 

Virtue, patriotism, or love of country, never was and never 
will be, till mens' natures are changed, a fixed, permanent 
principle and support of government. But in an agricultural 
country, a general possession of land in fee simple, may be 
rendered perpetual, and the inequalities introduced by com- 
merce, are too fluctuating to endanger government. An 
equality of property, with a necessity of alienation, constantly 
operating to destroy combinations of powerful families, is the 
very soul of a republic — While this continues, the people will 
inevitably possess both pozver and freedom; when this is lost, 
power departs, liberty expires, and a commonwealth will 
inevitably assume some other form. 

The liberty of the press, trial by jury, the Habeas Corpus 
writ, even Magna Charta itself, although justly deemed the 
palladia of freedom, are all inferior considerations, when" com- 
pared with a general distribution of real property' among 



36 



EXAMINATION BY NOAH WEBSTER. 



[48] every class of people.* The power of entailing estates is 
more dangerous to liberty and republican government, than 
all the constitutions that can be written on paper, or even 
than a standing army. Let the people have property, and 
they will have power — a power that will for ever be exerted 
to prevent a restriction of the press, and abolition of trial by 
jury, or the abridgement of any other privilege. The liber- 
ties of America, therefore, and her forms of government, 
stand on the broadest basis. Removed from the fears of a 
foreign invasion and conquest, they are [49] not exposed to 
the convulsions that shake other governments ; and the prin- 
ciples of freedom are so general and energetic, as to exclude 
the possibility of a change in our republican constitutions. 

But while property is considered as the basis of the free- 
dom of the American yeomanry, there are other auxiliary sup- 
ports ; among which is the information of the people. In no- 
country, is education so general — in no country, have the body 
of the people such a knowledge of the rights of men and the 

* Montesquieu supposed virtue to be the principle of a republic. He de- 
rived his notions of this form of government, from the astonishing firmness, 
courage and patriotism which distinguished the republics of Greece and Rome. 
But this virtue consisted in pride, contempt of strangers and a martial enthusi- 
asm which sometimes displayed itself in defence of their country. These 
principles are never permanent — they decay with refinement, intercourse with 
other nations and increase of wealth. No wonder then that these republics 
declined, for they were not founded on fixed principles ; and hence authors 
imagine that republics cannot be durable. None of the celebrated writers 
on government seems to have laid sufficient stress on a general possession of 
real property in fee-simple. Even the authors of the Political Sketches, in the 
Museum for the month of September, seems to have passed it over in silence ; 
although he combats Montesquieu's system, and to prove it false, enumerates 
some of the principles which distinguish our governments from others, and 
which he supposes constitutes the support of republics. 

The English writers on law and government consider Magna Charta, trial 
by juries, the Habeas Corpus act, and the liberty of the press, as the bulwarks 
of freedom. All this is well. But in no government of consequence in Europe, 
is freedom established on its true and immoveable foundation. The property 
is too much accumulated, and the accumulations too well guarded, to admit 
the true principle of republics. But few centuries have elapsed, since the body 
of the people were vassals. To such men, the smallest extension of popular 
privileges, was deemed an invaluable blessing. Hence the encomiums upon 
trial by juries, and the articles just mentioned. But these people have never. 



EXAMINATION BY NOAH WEBSTER. 



37 



principles of government. This knowledge, joined with a 
keen sense of liberty and a watchful jealousy, will guard our 
constitutions, and awaken the people to an instantaneous 
resistance of encroachments. 

But a principal bulwark of freedom is the right of election* 
An equal distribution of property is the foundation of a repub- 
lic ; but popular elections form the great barrier, which defends 
it from assault, and guards it from the slow and imperceptible 
approaches of corruption. Americans ! never resign that 
right. It is not very material whether your representatives 
are elected for one year or two — but the right is the Magna 
Charta of your governments. For this reason, expunge that 
clause of the new constitution before mentioned, which gives 
Congress an influence in the election of their own body. The 
time i place and mariner of chusing senators or representatives 
are of little or no consequence to Congress. The number o£ 
members and time of meeting in Congress are fixed ; but the 
choice should rest with the several states. [50] I repeat it — 
reject the clause with decency, but with unanimity and firm- 
ness. [*] 

Excepting that clause the constitution is good [f] — it guar- 
antees the fundamental principles of our several constitutions 
— it guards our rights — and while it vests extensive powers in 
Congress, it vests no more than are necessary for our union. 
Without powers lodged somewhere in a single body, fully 
competent to lay and collect equal taxes and duties — to adjust 

been able to mount to the source of liberty, estates in fee, or at least but par- 
tially ; they are yet obliged to drink at the streams. Hence the English jealousy 
of certain rights, which are guaranteed by acts of parliament. But in America, 
and here alone, we have gone at once to the fountain- of liberty, and raised the 
people to their true dignity. Let the lands be possessed by the people in fee- 
simple, let the fountain be kept pure, and the streams will be pure of course. 
Our jealousy of trial by jury, the liberty of the press, &c, is totally groundless. 
Such rights are inseparably connected with the power and dignity of the people, 
which rest on their property, They cannot be abridged. All other [free] 
nations have wrested property and freedom from barons and tyrants ; we begin . 
our empire with full possession of property and all its attending rights. 

[*Last three sentences struck out in author's copy. — p. L. F.] 
[f Revise to "The constitution is generally good. — p, L. F.J 



38 



EXAMINATION BY NOAH WEBSTER. 



controversies between different states — to silence contending 
interests — to suppress insurrections — to regulate commerce — 
to treat with foreign nations, our confederation is a cobweb — 
liable to be blown asunder by every blast of faction that is 
raised in the remotest corner of the United States. 

Every motive that can possibly influence men ever to unite 
under civil government, now urges the unanimous adoption of 
the new constitution. But in America we are urged to it by a 
singular necessity. By the local situation of the several states 
a few command all the advantages of commerce. Those states 
which have no advantages, made equal exertions for indepen- 
dence, loaded themselves with immense debts, and now are 
utterly \W unable to discharge them ; while their richer neigh- 
bors are taxing them for their own benefit, merely because they 
can. I can prove to a demonstration that Connecticut, which 
has the heaviest internal or state debt, in proportion to its 
number of inhabitants, of any in the union, cannot discharge 
its debt, on any principles of taxation ever yet practised. Yet 
[51] the state pays in duties, at least 100,000 dollars annually, 
on goods consumed by its own people, but imported by New 
York. This sum, could it be saved to the state by an equal 
system of revenue, would enable that state to gradually sink 
its debt.* ft] 

New Jersey and some other states are in the same situa- 
tion, except that their debts are not so large, in proportion to 
their wealth and population. 

The boundaries of the several states were not drawn with 
a view to independence ; and while this country was subject to 
Great Britain, they produced no commercial or political incon- 
veniences. But the revolution has placed things on a differ- 
ent footing. The advantages of some states, and the disad- 
vantages of others are so great — and so materially affect the 
business and interest of each, that nothing but an equalizing 

[^[ "utterly " struck out. — p. l f.] 

*The state debt of Connecticut is about 3,500,000 dollars, its proportion 

of the federal debt about the same sum. The annual interest of the whole 
420,000 dollars. 

[f Last three sentences, the following paragraph and foot note struck out 
in author's copy. — P. L. F.] 



EXAMINATION BY NOAH WEBSTER. 



39 



system of revenue, that shall reduce the advantages to some 
equitable proportion, can prevent a civil .war and save the 
national debt. Such a system of revenue is the sine qua non 
of public justice and tranquillity. 

It is absurd for a man to oppose the adoption of the con- 
stitution, because he thinks some part of it defective or excep- 
tionable. Let every man be at liberty to expunge what he 
judges to be exceptionable, and not a syllable of the constitu- 
tion [52] will survive the scrutiny. A painter, after executing 
a masterly piece, requested every spectator to draw a pencil 
mark over the part that did not please him ; but to his sur- 
prise, he soon found the whole piece defaced. Let every man 
examine the most perfect building by his own taste, and like 
some microscopic critics, condemn the whole for small devia- 
tions from the rules of architecture, and not a part of the best 
constructed fabric would escape. But let any man take a com- 
prehensive view of the whole, and he will be pleased with the 
general beauty and proportions, and admire the structure. 
The same remarks apply to the new constitution. I have 
no doubt that every member of the late convention has 
exceptions to some part of the system proposed. Their 
constituents have the same, and if every objection must be 
removed, before we have a national government, the Lord 
have mercy on us. 

Perfection is not the lot of humanity. Instead of censur- 
ing the small faults of the constitution, I am astonished that 
so many clashing interests have been reconciled — and so many 
sacrifices made to the general interest ! The mutual conces- 
sions made by the gentlemen of the convention, reflect the 
highest honor on their candor and liberality ; at the same time, 
they prove that their minds were deeply impressed with a con- 
viction, that such mutual sacrifices are essential to our union. 
They must be made sooner or later by every state ; or jealous- 
ies, local interests and prejudices will unsheath the sword, and 
some Caesar or Cromwell will avail himself [53] of our divisions, 
and wade to a throne through streams of blood. 

It is not our duty as freemen, to receive the opinions of 
any men however great and respectable, without an examina- 



40 



EXAMINATION BY NOAH WEBSTER. 



tion. But when we reflect that [*] some of the greatest men 
in America, with the venerable Franklin and the illustrious 
WASHINGTON at their head ; some of them the fathers and 
saviors of their country, men who have labored at the helm 
during a long and violent tempest, and guided us to the haven 
of peace — and all of them distinguished for their abilities 
their acquaintance with ancient and modern governments, as 
well as with the temper, the passions, the interests and the 
wishes of the Americans ; — when we reflect on these circum- 
stances, it is impossible to resist impressions of respect, and 
we are almost impelled to suspect our own judgements, when 
we call in question any part of the system, which they have 
recommended for adoption. Not having the same means of 
information, we are more liable to mistake the nature and ten- 
dency of particular articles of the constitution, or the reasons 
on which they were admitted. Great confidence therefore 
should be reposed in the abilities, the zeal and integrity of 
that respectable body. But after all, if the constitution 
should, in its future operation, be found defective or inconve- 
nient, two-thirds of both houses of Congress or the application 
of two-thirds of the legislatures, may open the door for 
amendments. Such improvements may then be made, as 
experience shall dictate. 

[54] Let us then consider the New Feder-al Constitution, as 
it really is, an improvement on the best constitutions that the 
world ever saw. In the house of representatives, the people 
of America have an equal voice and suffrage. The choice of 
men is placed in the freemen or electors at large ; and the 
frequency of elections, and the responsibility of the members, 
will render them sufficiently dependent on their constituents. 
The senate will be composed of older men ; and while their 
regular dismission from office, once in six years, will preserve 
their dependence on their constituents, the duration of their 
existence will give firmness to their decisions, and temper the 
factions which must necessarily prevail in the other branch. 
The president of the United States is elective, and what is 
a capital improvement on the best governments, the mode 

[*"The convention was composed of," added after " that," by author. — 

P. L. F'] 



EXAMINATION BY NOAH WEBSTER. 



41 



of chusing him excludes the danger of faction and corrup- 
tion. [*] As the supreme executive, he is invested with power 
to enforce the laws of the union and give energy to the fed- 
eral government. 

The constitution defines the powers of Congress ; and every 
power not expressly delegated to that body, remains in the 
several state-legislatures. The sovereignty and the republican 
form of government of each state is guaranteed by the consti- 
tution ; and the bounds of jurisdiction between the federal 
and respective state governments, are marked with precision. 
In theory, it has all the energy and freedom of the British 
and Roman governments, without their defects, In short, the 
privilges of freemen are [55] .interwoven into the feelings and 
habits of the Americans ; liberty stands on the immoveable 
basis of a general distribution of property and diffusion of 
knowledge ; but the Americans must cease to contend, to fear, 
and to hate, before they can realize the benefits of indepen- 
dence and government, or enjoy the blessings, which heaven 
has lavished, in rich profusion, upon this western world. 

[* " This proves how little dependence can be placed on theory Twelve 
years experience, or four elections demonstrates the contrary." — Note in 
author's copy. — P. L. f.] 



1 C vxft